The group seeks special election for fracking ballot question

Through its attorneys, Protect Our Loveland has replied to arguments raised by the city of Loveland in the ongoing legal battle over a ballot initiative for a fracking moratorium.

The reply in support of Protect Our Loveland's motion for preliminary injunction was filed in 8th Judicial District Court on Monday, a week after attorneys for the city and attorneys for Loveland resident Larry Sarner filed responses urging the court to deny the motion. Sarner and Protect Our Loveland are both suing the city related to the ballot initiative and the lawsuits were recently consolidated into one case.

Prior to consolidation, Judge Thomas French requested that the parties address the issue of whether the court can entertain the motion for preliminary injunction before Sarner's issues are resolved.

Sarner seeks an appeal of City Clerk Terry Andrews' determination that Protect Our Loveland's petitions were sufficient for the proposed ordinance to be place on the ballot. In response to Sarner's lawsuit, a split City Council decided on Sept. 3 not to put the initiative on the ballot, pending the outcome of Sarner's case.

Final petition sufficiency in the crux of the legal battle -- Protect Our Loveland believes that happened with Andrews' final validation while the city and Sarner have argued that can not occur until a conclusion is reached in court.

Protect Our Loveland, represented by the University of Denver Environmental Law Clinic and Boulder-based attorney James Daniel Leftwich, maintains that the City Council's decision delays the group's constitutional right of initiative and presents a danger of irreparable injury in doing so.

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In court documents, the city's attorneys called Protect Our Loveland's claims of irreparable injury "completely speculative." But because of the city's interpretation of "final petition sufficiency" and a court process with no set timeline, attorneys for Protect Our Loveland argued in the latest filings that a delay will harm the group's goal of giving Loveland citizens an opportunity to vote on the issue.

The proposed ordinance would ask voters whether to impose a two-year moratorium on fracking within city limits while studies on human health and property values are conducted.

A special election would likely cost between $50,000 to $60,000, and through its attorneys, Protect Our Loveland argued that it's a cost the city actively chose to incur.

"The more prudent choice would have been to take steps to put the measure on the November ballot, with instructions to stay the effect of the vote pending appeal," the motion states. "Having chosen to risk the more expensive option, the city cannot place the burden upon Protect Our Loveland."

Judge Daniel Kaup, who presides over the consolidated case, will first address whether the court has jurisdiction to rule on preliminary injunction before the issues in Sarner's appeal are resolved, after which a hearing on the motion could proceed.